By Krista Doherty
On June 14, 2019, the U.S. Court of Appeals for the D.C. Circuit upheld the District Court’s “preliminary injunction against the government’s blanket denial access to abortion for unaccompanied minors,” with Judge Laurence H. Silberman dissenting. The court “vacate[d] and remand[ed], though, a separate aspect of the district court’s preliminary injunction, which bars disclosure to parents and others of unaccompanied minors’ pregnancies and abortion decisions.”
In March 2017, the Office of Refugee Resettlement (ORR) declared that shelters for unaccompanied minors are banned “from taking any action that facilitates an abortion without direction and approval from the Director of ORR” (Opinion, 11). Director Scott Llyod of ORR “denied every abortion request presented to him during his tenure. He refused every request regardless of the circumstances, including when the pregnancy resulted from rape.” According to the June 14 opinion, “The requirement to obtain the Director’s approval thus functions as a blanket ban” (Opinion, 12).
The court said that the government’s denial of abortion access cannot “be squared with Supreme Court precedent.” While acknowledging the ‘controversial nature’ surrounding the ‘right to an abortion’ in which “people ‘sincerely hold directly opposing views,” the court said that “the Supreme Court ‘has determined and then redetermined that the Constitution offers basic protection to the women’s right to choose.’ And we are not free to dilute the constitutional right recognized by controlling Supreme Court precedent-a right the government affirmatively assumes unaccompanied minors here have-so that others will be dissuaded from seeking a better life in this country” (Opinion, 76-77).
The government had also argued that the case was moot and appealed the District Court’s “grant of class certification,” But the court rejected these claims, with Judge Silberman dissenting: “The crux of [Judge Silberman’s] dispute on this issue is that [he] believes that the class is much too broad; it should not include pregnant minors who do not wish an abortion, whether you refer to that as a violation of commonality, typicality, or adequacy” (Opinion, 82). Judge Silberman also disagreed with the majority regarding mootness as well as the merits.